Showing papers on "Judicial opinion published in 2004"

Institutional Dynamics on the U.S. Court of Appeals: Minority Representation Under Panel Decision Making

Abstract: This article assesses how the institutional context of decision making on three-judge panels of the federal Court of Appeals affects the impact that gender and race have on judicial decisions. Our central question is whether and how racial minority and women judges influence legal policy on issues thought to be of particular concern to women and minorities when serving on appellate panels which decide cases by majority rule. Proper analysis of this question requires investigating whether women and minority judges influence the decisions of other panel members. We find that the norm of unanimity on panels grants women influence over outcomes even when they are outnumbered on a panel.

Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals

Abstract: Students of judicial behavior have increasingly turned to strategic accounts to understand judicial decision making. Scholarship on the Supreme Court and state high courts suggests that the decision to dissent is better understood in light of strategic considerations rather than simply reflecting ideological disagreement. We investigate whether these findings comport with behavior by judges on the U.S. Courts of Appeals. We develop a spatial model of the decision to dissent that incorporates both attitudinal and strategic elements and subject this model to empirical analysis. We find that ideological disagreement between a judge and the majority opinion writer is a more persuasive explanation of the decision to dissent than a strategic account in which a judge conditions a dissent on whether circuit intervention would obtain the judge's preferred outcome. Though we do not discount the existence of other types of strategic behavior on the Courts of Appeals, our research suggests that strategic accounts of dissenting behavior are not generalizable to all courts.

The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking

Abstract: This Essay reports the results of an interdisciplinary project comparing political science and legal approaches to forecasting Supreme Court decisions. For every argued case during the 2002 Term, we obtained predictions of the outcome prior to oral argument using two methods—one a statistical model that relies on general case characteristics, and the other a set of independent predictions by legal specialists. The basic result is that the statistical model did better than the legal experts in forecasting the outcomes of the Term’s cases: The model predicted 75% of the Court’s affirm/reverse results correctly, while the experts collectively got 59.1% right. These results are notable, given that the statistical model disregards information about the specific law or facts of the cases. The model’s relative success was due in large part to its ability to predict more accurately the important votes of the moderate Justices (Kennedy and O’Connor) at the center of the current Court. The legal experts, by contrast, did best at predicting the votes of the more ideologically extreme Justices, but had difficulty predicting the centrist Justices. The relative success of the two methods also varied by issue area, with the statistical model doing particularly well in forecasting “economic activity” cases, while the experts did comparatively better in the “judicial power” cases. In addition to reporting the results in detail, the Essay explains the differing methods

The Median Justice on the United States Supreme Court

Abstract: Black's \"Median Voter Theorem\" now figures prominently and crucially in a wide array of research on the United States Supreme Court, from studies on the nomination and confirmation of Justices, to investigations into the Court's resolution of disputes, to analyses of its impact on the hierarchy of justice. Nonetheless, and regardless of the substantive focus of the investigation, the question of how to locate the median Justice looms large. Because all extant answers have their share of problems, we set out to develop a more compelling approach-one that relies on methods developed by Martin and Quinn. Via this approach we derive a systematic accounting of the Justice with the highest (posterior) probability of having served as the median for each Term since 1937.

Court of Public Opinion: Government Accountability and Judicial Independence

Abstract: Using a simple model of policy making in a system characterized by formal separation of powers, judicial dependence on government support, asymmetric information between voters and the government, and political accountability of the policy branch, I show conditions under which rational voters force the government to cede power over legislative decisions to the courts. Specifically, the public uses its ability to hold the elected branches of government accountable to enforce a judicial veto when judicial opposition to legislation provides more reliable information to voters than government support for legislation does. The model thus provides a theoretical justification for, and suggests important limits to, the common assumption that disregard for judicial decisions is politically costly for elected politicians. The model also demonstrates how other observed patterns in judicial politics--including judicial rubber-stamping of government decisions and government "passing the buck" to courts-can arise as equilibria in the same simple framework.

Oral Arguments and Decision Making on the United States Supreme Court

Abstract: Few scholars have found systematic evidence that oral arguments play a significant role in the decision making of the U.S. Supreme Court. Studies of the solicitor general and other experienced lawyers find significant effects from advocacy in the Court, but for the most part it seems not to play a major role in determining how policies are made by the justices. One reason, suggests Timothy Johnson, is that we have been looking in the wrong place. Instead of testing for the impact of advocacy on case outcomes or written opinions, Johnson’s book argues that we should see oral argument, not as an opportunity for attorneys to influence the justices, but rather as a tool that the members of the Court can exploit in order to maximize their preferred goals. Aware of the need to build coalitions internally and to avoid confrontations with external actors, the justices strategically employ arguments to extract information, to develop legal and policy issues for conference discussion, and ultimately to help form majorities and inform their written opinions. It is a cogently argued and well-researched book that deserves serious attention from those who want to understand the role of strategic decision making on a collegial court.

Judicial Policy Implementation in Mexico City and Merida

Abstract: Why do some of the world's constitutional courts challenge governmental authority over many kinds of policies, while others avoid conflict over particularly sensitive or salient political issues? Why do some elected officials immediately obey judicial resolutions that challenge their authority, while others find ways not to implement judicial decisions? These questions are important in understanding the role constitutional courts play in ensuring that elected officials respect a state's fundamental political rules.1 If constitutional courts are unwilling to challenge governmental authority, or if public officials are unwilling to implement politically unfavorable decisions, the degree to which constitutional courts can serve as effective horizontal mechanisms of accountability will be considerably constrained. Despite the importance of both questions, much of the growing comparative scholarship on law and courts has sought to explain judicial behavior without addressing the reactions of government officials to adverse judicial decisions.2 Consequently, scholars are left with a largely one-sided account of judicial politics that provides much empirical support for theories of judicial decision making but little support for theoretical conclusions about the implementation of judicial policy. In contrast to this trend, recent work by Georg Vanberg integrates diverse studies of judicial activism and policy implementation by specifying what might be called a public enforcement mechanism for judicial orders, in which public support for courts and the related pressure constituents can place on their representatives may induce compliance with adverse judicial resolutions.3 On this account, public support also can provide the political cover courts require to take on sensitive political conflicts. Of course, this mechanism works only if people are sufficiently informed about the nature of the conflicts they are purported to enforce. Accordingly, Vanberg considers how the relative transparency ofjudicialized conflicts influences interbranch conflict.4 Despite Vanberg's important theoretical advance in simplifying diverse yet connected studies, his model leaves a number of issues underdeveloped. This article addresses two. First, public willingness to help enforce judicial resolutions and public capacity to impose significant costs on their representatives for instances of noncompliance are distinct concepts. They should be treated as such in both theoretical and empirical analysis. Second, if the kind of information concerning interbranch conflict to which people have

Mutual Recognition in European Judicial Cooperation: A Step too Far too Soon? Case Study - The European Arrest Warrant

Abstract: The European arrest warrant (EAW) is the first and most striking example of the extensive judicial cooperation in criminal matters that is beginning to take place in the European Union. Replacing traditional extradition between EU member states, including the ten accession countries after May 2004, it will operate on the basis of mutual recognition of judicial decisions, thus taking extradition decisions out of the hands of politicians. It rests on the presumption that criminal justice systems are equivalent throughout the EU and that the rights of the defence, in particular, are safeguarded adequately and in a comparable way EU-wide. However, before the EAW has even been implemented, a number of practical problems are beginning to emerge, in particular in relation to the protection of individual rights and legal certainty in the European judicial space. The way in which these problems are tackled will be a litmus test of the respect for fundamental rights across the EU in the field of justice and home affairs. This article highlights the problems inherent in the rapid development of the principle of mutual recognition and suggests ways in which these problems can be addressed allowing for full protection of fundamental rights within a fully functioning European area of freedom, security, and justice. The EAW will be used to illustrate the prominent features of the emerging landscape of judicial cooperation in criminal matters, providing as it does the most radical example of developments in this field so far and their implications for fundamental rights.

Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study—the European Arrest Warrant

Abstract: The European arrest warrant (EAW) is the first and most striking example of the extensive judicial cooperation in criminal matters that is beginning to take place in the European Union. Replacing traditional extradition between EU member states, including the ten accession countries after May 2004, it will operate on the basis of mutual recognition of judicial decisions, thus taking extradition decisions out of the hands of politicians. It rests on the presumption that criminal justice systems are equivalent throughout the EU and that the rights of the defence, in particular, are safeguarded adequately and in a comparable way EU-wide. However, before the EAW has even been implemented, a number of practical problems are beginning to emerge, in particular in relation to the protection of individual rights and legal certainty in the European judicial space. The way in which these problems are tackled will be a litmus test of the respect for fundamental rights across the EU in the field of justice and home affairs. This article highlights the problems inherent in the rapid development of the principle of mutual recognition and suggests ways in which these problems can be addressed allowing for full protection of fundamental rights within a fully functioning European area of freedom, security, and justice. The EAW will be used to illustrate the prominent features of the emerging landscape of judicial cooperation in criminal matters, providing as it does the most radical example of developments in this field so far and their implications for fundamental rights.

The Purposes, Effects, and Future of the Endangered Species Act's Best Available Science Mandate

Abstract: In recent years, the use of scientific data in administrative decisions has become increasingly contentious. The Endangered Species Act, because it repeatedly calls for consideration of the best available scientific data and has been at the center of a number of fierce disputes, provides a useful case study of the role of science in environmental policy. To date there has been little explicit analysis of either the reasons for the Act's strong and repeated best available science mandate or the effects of the mandate on the Act's implementation. The mandate could have been intended to increase the substantive accuracy of decisions, to promote political credibility, to alter the terms upon which courts review agency decisions, or to change the decision-making process. Today, the mandate's effect on the substantive accuracy of decisions above the background levels guaranteed by the Administrative Procedure Act appears limited. Its ability to provide political credibility has been eroded by high-profile disputes in which the scientific data supporting decisions has been publicly shown to be thin. It is difficult to tell whether it has had any effect on the outcome of judicial review. Procedurally, the mandate may enhance the influence of career scientific employees in agencies by comparison with that of the political appointees who head the agencies. It could also be interpreted to impose an affirmative data discovery or collection requirement. Early regulations and judicial decisions found just such a requirement, but more recently both implementing agencies and courts appear to have moved away from that interpretation. Recent proposals to amend the Endangered Species Act have concentrated on imposing additional scientific hurdles to regulation. Those proposals would do little to improve the substantive reliability of agency decisions. Scientific information is and will remain limiting for a large proportion of decisions under the Act. In order to achieve the Act's conservation purposes, the implementing agencies must have the discretion to rely on thin scientific information at the outset. The best available science mandate, which allows the agency to extrapolate from existing data, provides that discretion. But the scientific information available could be put to more effective use, consistent with a robust political process. The agencies should be forced to openly acknowledge the limits of the available scientific data and choices made in the face of uncertainty. They should also be required to take stronger steps to improve the knowledge base over time, so that decisions can become progressively more reliable. These steps, which would not require legislative modification of the Act, could improve both the substance and the political credibility of implementing decisions.

What is the Sound of a Corporation Speaking? How the Cognitive Theory of Metaphor Can Help Lawyers Shape the Law

Abstract: This article argues that better understanding of metaphor's cognitive role can help lawyers shape judicial decision making. As a way of exploring metaphor's contribution to shaping the law, the article focuses on how a particular lawsuit was influenced by metaphor, in particular, by the primary metaphor that a corporation is a person within the more complex metaphorical system suggested by the marketplace of ideas model for First Amendment protection. After describing the cognitive theory of metaphor and examining the metaphors underlying First Amendment protection for corporate speech, the article analyzes the use of metaphor in the briefs filed in the U.S. Supreme Court in a lawsuit brought by a consumer activist against Nike, Inc. Following that analysis, the article concludes with a series of recommendations for practicing lawyers.

The Vulnerability of Indigenous Land Rights in Australia and Canada

Abstract: Not until the 1990s did the highest courts in Australia and Canada begin to address the colonial reality of the dispossession of the Indigenous peoples. In Australia, the High Court has held that the lacking of Indigenous lands and creation of third party rights by the Crown resulted in extinguishment of Native title. In Canada, while not dealing directly with the issue of extinguishment, the Supreme Court has authorized infringement of Aboriginal land rights for a variety of purposes, including the creation of third party rights. This article examines the legal justifications for these conclusions and finds that they arc not consistent with long-standing principles and precedents of the common law. The explanations for these judicial opinions, the author argues, can be found instead in economic and political considerations that have been influencing the courts. He suggests that this is a reality Indigenous peoples need to take into account when deciding whether to expose their rights to the judicial authority of the Australian and Canadian stares.

The Importance of Being Positive: The Nature and Function of Judicial Review

Abstract: This lecture advances a positive theory of judicial review. Most legal theory about judicial review is normative: it envisions judicial review as posing either a hope for, or a threat to, democracy. The hope is that courts will protect rights; the threat is that judicial review will undermine popular governance. Depending on which position a scholar believes is correct, there follows prescription about how judges should behave. The lecture relies upon learning from the social sciences - primarily history and political economy - to undermine the central assumption of both the hope and threat stories. At the heart of both hope and threat theories is an essentially empirical assumption: that the judiciary can impose its will in the face of contrary political sentiment. Evidence and theory from the social sciences, however, suggests courts are unlikely to be able to play the heroic role, and that in fact they have not acted contrary to popular will for an extended period of time. If both hope and threat are overstated because judicial decisions cannot run into the face of popular will, what is the function of judicial review? Turning from critique, the lecture examines what we know about how judicial review operates, to build a positive theory of judicial review. The primary reaction to contested judicial decisions is backlash, followed by a period of engagement in which political forces seek to overturn unpopular decisions. Evidence shows that over time judicial decisions come into line with longstanding popular will. In light of the actual process of judicial review, it is best understood as promoting dialogue in society about fundamental constitutional values. Courts foment debate over contested constitutional issues, and ultimately bring the Constitution into line with dominant views on those issues. There are normative reasons to applaud this role. But whether they are persuasive or not, as a positive matter this is what judicial review does.

Court-mediated disputes between physicians and families over the medical care of children.

Abstract: Objective To describe the judiciary's approach to parent-physician disputes over the care of sick children. Data Sources Court publications. Study Selection Fifty parent-physician disagreements over the care of children led to physician requests for court intervention and resulted in judicial opinions published by the court. The opinions describe 66 children from 20 states. Data Synthesis Physicians prevailed at the initial decision in 44 (88%) of the 50 disputes and at the final decision in 40 disputes (80%). Physicians were more likely to prevail in religion-based disputes than in other cases (27 of 30 vs 13 of 20; P P Conclusions Published court opinions create precedents for future decisions and provide insight into the consequences of seeking court intervention for the physician who encounters parental refusal of care.

The Impact of Representation Norms on the Quality of Judicial Decisions

Abstract: Judges are obliged to give reasons for their decisions. A set of formal and informal norms specifies how this is to be done. These norms serve a whole array of purposes. This paper shows that one substantial effect is on decision quality. The effect can even be demonstrated on an ad hoc basis. Representation norms and the actual representation activity that is brought about by them have both a cognitive and a motivational effect. They palpably hold the judge accountable for the decision taken. And they guide him through the judgment elements inherent in his task. There is interplay between both effects when it comes to combating occasional non-normative motivation, debiasing and the choice of an appropriate decision mode. More importantly even than this short-term effect is the long-term power of representation norms. They exert this power as part and parcel of a richer institutional arrangement. That arrangement reminds the judge of the professional role he is playing, and it contributes to strengthening this attitude. And the institutional arrangement helps the judge in the process of progressive expertisation. Expertisation is no absolute protection against quality defects, but it is likely to significantly improve the quality of decisions. Suggestions for the deregulation of representation norms should pay due respect to the beneficial effect these norms have on the quality of decisions.

Principles of patent law

Abstract: Using judicial opinions from leading casebooks along with numerous hypotheticals and examples, this text illustrates the many challenging issues and innovative trends in patent law today. Sections on basics such as patent law norms, policy, and patent history build the conceptual foundation for explorations of claims, patent prosecution, and complex aspects of patent law. International treaties and conventions that impact innovators, litigators, and policymakers are also covered in this comprehensive text.

Richard Posner's democratic pragmatism and the problem of ignorance

Abstract: Richard Posner's Law, Pragmatism, and Democracy urges that political and legal decision makers should be guided by what he calls “everyday pragmatism,” rather than by “abstract” moral theory. He links his conception of pragmatic government to Sclmmpeter's unromantic view of democracy. Posner argues that judicial review should be based on a combination of pragmatism and adherence to this limited conception of democracy, rather than sticking closely to “formalist” theories of adjudication, which demand strict adherence to traditional legal norms. However, Posner's consequentialist pragmatism fails to provide an adequate guide to judicial decision making, because it does not give us any criterion for deciding which consequences are desirable. His Schumpeterian theory of democracy, too, is problematic because it does not sufficiently consider the shortcomings exposed in recent scholarship in political science and economics.

The Vulnerability of Indigenous Land Rights in Australia and Canada

Abstract: Not until the 1990s did the highest courts in Australia and Canada begin to address the colonial reality of the dispossession of the Indigenous peoples. In Australia, the High Court has held that the taking of Indigenous lands and creation of third party rights by the Crown resulted in extinguishment of Native title. In Canada, while not dealing directly with the issue of extinguishment, the Supreme Court has authorized infringement of Aboriginal land rights for a variety of purposes, including the creation of third party rights. This article examines the legal justifications for these conclusions and finds that they are not consistent with long-standing principles and precedents of the common law. The explanations for these judicial opinions, the author argues, can be found instead in economic and political considerations that have been influencing the courts. He suggests that this is a reality Indigenous peoples need to take into account when deciding whether to expose their rights to the judicial authority of the Australian and Canadian states.

Moody Investing and the Supreme Court: Rethinking Materiality of Information and Reasonableness of Investors

Abstract: This Article critically analyzes the judicial decisions and reasoning of the United States Supreme Court and lower courts accepting certain defenses in securities fraud litigation. This Article develops how and why the core notions of materiality of information and the reasonable investor should be revised in light of recent empirical data, experimental evidence, and theoretical models of moody investing. This Article proposes modifying three recent developments in materiality doctrine to take into account moody investing. In particular, this Article argues that current judicial treatment of puffery is flawed because it neglects the power of puffery to alter moods. This Article also recommends modifying the judicial "total mix" analysis of the materiality of information to include a "total affect" analysis of information. Finally, this Article proposes refining the judicially created so-called "bespeaks caution" doctrine and statutory safe harbors codifying it to inquire whether so-called "meaningful cautionary language" is infused with affect.

Israel Yearbook on Human Rights

Abstract: List of Participants. Articles. I. Belligerent and Non-Belligerent Occupation. II. Armed Conflict: International and Internal. III. Specific Problems of Human Rights. Judicial Decisions. Book Reviews. Special Supplement.

A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903-2001

Abstract: Empirical research into judicial decision-making of a court provides insights into the court's operation, and an analysis of the decisions of the High Court delivered from 1903 to 2001 has revealed clear trends. The length of reasons for decisions of the Court has increased from the beginning of the 1990s and peaked in the mid-to-late 1990s, and the level of joint, concurring and dissenting opinions have fluctuated over time and shown no clear trend.

Brown and Historically Black Colleges and Universities (HBCUs): A Paradox of Desegregation Policy.

Abstract: This article explores the idea that at its 50th anniversary, Brown provides proof that despite its landmark significance, based on relief in the courts, its principles can create a backlash of unintended consequences. Stated differently, battles won can be revoked. To highlight the fact that the war for equitable educational opportunity persists, we examine here various litigious and legislative assaults upon historically Black colleges and universities (HBCUs). Why of all the multitudinous groups of people in this country [do] you have to single out Negroes and give them this separate treatment? The only thing [it] can be is an inherent determination that the people who were formerly in slavery, regardless of anything else, shall be kept as near that stage as is possible; and now is the time, we submit, that this Court should make it clear that that is not what our Constitution stands for. Thurgood Marshall, 1953 (From Friedman, 1969, pp. 239-240) INTRODUCTION Thurgood Marshall and his NAACP colleagues understood the role of educational opportunity in perpetuating systemic disadvantage and they chose the U.S. Supreme Court as the battleground to challenge the separate and discriminatory treatment African Americans endured. In 2004, five decades later, the 1954 Brown decision has long since taken on a life of its own superseding the legal questions it sought then to redress, yet, the fundamental conviction relative to the importance of schooling in American society has intensified (Bell, 2004a). Educational institutions represent the gatekeepers of social and economic mobility and quality of life more in the 21st century than they did on May 17, 1954 when the Supreme Court rendered its epochal Brown v. Board of Education decision. Escalating significance associated with performance at all levels of schooling is due in large measure to heavy reliance upon technological innovation, demographic shifts, and the competitive pressures of a globalized economy. Colleges and universities were not the specific the focus of the Brown decision; however, arguments in favor of equitable access to publicly funded educational venues by inference and extension included all aspects of higher educational policy. In the post-Brown era, the courts have continued to play a significant role in defining policies and practices that, by design, provide or narrow the treatment for all races, ethnicities, sexual orientations, and other minority group memberships. But in contrast to the progressive stance of the Warren Court, contemporary judicial decisions and legislative mandates have begun to attack, undermine, and dismantle the tenets of Brown in lower schools and in colleges and universities. This article explores the idea that at its 50th anniversary, Brown provides proof that despite its landmark significance, basing relief in the courts and its principles can create a backlash of unintended consequences. Stated differently, battles won can be revoked. To highlight the fact that the war for equitable educational opportunity persists, we examine here various litigious and legislative assaults upon historically Black colleges and universities (HBCUs). There are both fundamental similarities and differences between public K-12 schools and postsecondary institutions as they pertain to Brown. All public educational institutions are funded primarily by state and federal dollars. Like the lower schools in 1954, HBCUs have never been unded on par with their traditionally White institution (TWI) counterparts. Governance of public primary, secondary, and postsecondary schools resides mostly in the states through provisions articulated in the 10th Amendment of the U.S. Constitution, and federal influence over these institutions has largely been exercised by enactments that enhance or diminish financial support. Still many of our citizens assume that the Brown ruling definitively singled out lower schools as separate educational systems because they were the plaintiffs at hand. …

ICT adoption in the judiciary: classifying of judicial information

Abstract: The article discusses one of the practical problems of information communication technology (ICT) use in the judiciary—classifying and categorization of legal information. This problem that plagues the judiciary in Lithuania is very important to solve in order to minimize the digital divide of the courts, increase transparency of judicial decisions, and increase uniformity of judicial practice and interpretations of the law. The problem is usually approached by applying standard ontological legal classification schemes from legal philosophy. However, such an approach is extremely demanding in terms of human time and labor. The practice of Lithuania is studied as an example of practical manifestation of the target problem. Suggestions are made that Artificial Intelligence‐ (AI‐) based XML or Resource Description Framework (RDF) tools may be employed in order to facilitate such classification.

On What A "Private Attorney General" Is-And Why It Matters

Abstract: Although the phrase "private attorney general" is commonly employed in American law, its meaning remains elusive. The concept generally serves as a placeholder for any person who mixes public and private features in the adjudicative arena. Yet there are so many players who mix public and private functions in so many different ways that the idea holds the place for a motley cast of disparate characters. My goal in this Article is to map these mixes-to distill from the singular private attorney general concept a range of distinct private attorneys general-and then to show why this new taxonomy is a helpful heuristic device. Specifically, I argue that the new taxonomy illuminates a weakness in the governing model of the class case. Scholars loosely associated with the law and economics movement have helpfully described class action lawsuits as presenting a classic agency problem: class action attorneys (agents) pursue the interests of their class member clients (principals) with little oversight or control. Consequently, class action scholarship has focused on identifying ways to better align the interests of the agents with those of their principals. This obsession with agent incentives assumed, without significant investigation, that there existed a stable group of principals with easily-identifiable interests. My typology demonstrates that different types of private attorneys general serve different types of principals, each of which combine public and private interests in different ways. If the goal of class action law is to align the attorneys' interests with those of their clients, it is necessary to identify clearly the precise nature of these underlying principals. That is the contribution of this piece. I. INTRODUCTION May 17, 2004 marked the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education.1 This precise day also marked the sixty-first anniversary of the Supreme Court's first use of the phrase "private attorney general."2 For about three decades after this initial 1943 appearance, the private attorney general concept surfaced only occasionally in the legal literature. Starting in the 1970s, however, its presence became quite regular, and that regularity has escalated steadily to the present: on average, during the past fifteen years, every single workday, somewhere in the United States, some judge has written a legal opinion or some scholar has penned an article invoking the private attorney general concept.3 That the phrase is employed so frequently suggests its utility as a concept. What is odd, though, is that when probed, the concept proves surprisingly mercurial.4 The phrase is sometimes used to refer to plaintiffs,5 occasionally used to refer to defendants,6 and typically used to refer to lawyers.7 (What other concept is so malleable that it can be deployed to signify either a plaintiff or a defendant, a lawyer or a client?) Legislatures create private attorneys general by statute, but before they did and when they have not, courts have created them by judicial decision, and executive agencies by fiat.8 Congress creates private attorneys general, but so do state legislatures, state courts, and state administrative agencies.9 The phrase is an integral part of the doctrine of standing10 and of the rules concerning attorneys' fees.11 In its single most important decision about private attorneys general, the United States Supreme Court ruled that the Constitution necessarily restrains the concept, while simultaneously implying that courts of equity nonetheless retain inherent powers to propagate it.12 If there is any fixed star in this constellation, it is that the private attorney general is a placeholder for any person who mixes private and public features in the adjudicative arena. Yet even that compass point proves elusive, as there are so many players who mix public and private functions in so many different ways that the concept holds the place for a motley cast of disparate characters. …

Keynote address: foreign legal authority in the federal courts

Abstract: The subject of my remarks today is the use of foreign legal materials?statutes and judicial opinions?in the opinions of U.S. federal courts. I preface my remarks with the caveat that nothing I say is meant to (nor can I imagine how it possibly could) suggest a view on the out come of any pending case. The subject of court use of foreign legal materials turns out to be more timely than I realized when I suggested it some months ago. On March 17, House Resolution 568 was introduced in the House of Representatives. The operative portion of this resolution reads as follows:

Salvaging the spirit of the meter-models tradition: a model of belief revision by way of an abstract idealization of response to incoming evidence delivery during the construction of proof in court

Abstract: Inside the Juror (Hastie 1994) was, in a sense, a point of arrival for research developing formalisms that describe judicial decision making. Meter-based models of various kinds were mature, and even ready for giving way to such models that would concern themselves with the narrative content of the cases at hand, that a court is called to decide upon. Moreover, excessive emphasis was placed on lay factfinders, i.e. on jurors. It is noticeable that as “AI & Law” has become increasingly concerned with evidence in recent years – with efforts coordinated by Nissan & Martino, Zeleznikow, and others–the baggage of the meter-based models from jury research does not appear to be exploited. In this article, we try to combine their tradition with a technique of belief revision from artificial intelligence, in an attempt to provide an architectural component that would be complementary to models that apply representations or reasoning to legal narrative content.

The Impact of Legal Mobilization and Judicial Decisions: The Case of Official Minority-Language Education Policy in Canada for Francophones Outside Quebec

Abstract: The article investigates the impact of legal mohilization and judicial decisions on official minority-language education (OMLE) policy in the Canadian provinces outside Quebec, using the "factor-oriented" and "dispute-centered" theories of judicial impact developed by U.S. scholars. The Canadian Supreme Court's decision in Mahe v. Alberta (1990), which broadly interpreted Section 23 of the Charter of Rights to include management and control of OMLE programs and schools, along with federal funding to the provinces to implement OMLE policy, are important to explaining OMLE policy change as predicted by the factor-oriented approach. The dispute-centered approach, on the other hand, helps us understand how the Charter of Rights and judicial decisions shaped the goals and discourse of Francophone groups in the policy process and, more instrumentally, provided opportunity structures that Francophone groups exploited effectively. The article concludes that both approaches to explaining judicial impact could be accommodated within an institutional model of judicial impact that construes institutions as state actors, as sets of rules, and as frameworks of meaning and interpretation. Such an approach would allow for the development of a more comparative model of judicial impact. This article investigates the impact of legal mobilization and judicial decisions on official minority-language education (OMLE) policy in Canada (outside Quebec). This policy area is bound up with broader questions of constitutional accommodation between French- and English-speakers in Canada and "has produced some of the most emotional and politically charged conflicts in Canadian history" (Apps 1985:45).1 A 1991 study of Canadian interest group activists and academics in the education policy field revealed that Mahe v. Alberta (1990)-a Canadian Supreme Court decision that granted management and control rights over education to official minority-language groups-was considered the most important Canadian Charter of Rights judgment delivered by the court since the Charter of Rights was added to Canada's constitution in 1982 (Dolmage 1991). However, a 1992 report by the Official Languages Commissioner complained about the slow and contested implementation of OMLE rights enshrined in Section 23 of the Charter after the Supreme Court's Mahe ruling (Commissioner of Official Languages 1993:18). Does the slow acceptance of the Mahe decision affirm Rosenberg's (1991) assertion that pursuing social change through the courts represents a "hollow hope" for politically disadvantaged groups? Or do we need a different model to understand judicial impact? Surprisingly, given the extensive literature that has developed on the Charter since its entrenchment in Canada's constitution in 1982, there have been only limited and sporadic attempts to describe or explain the effects of legal mobilization and judicial decisions under the Charter. There is certainly no judicial impact literature in Canada equivalent to that in the United States. This article, therefore, draws upon the two dominant approaches to understanding judicial impact that have been developed in the U.S. literature to help explain the impact of judicial decisions on OMLE outside Quebec: the "bottom-up," "dispute-centered" approach and the "top-down," "factor-oriented" approach. The first part of the article presents an overview of these two approaches to predict and explain judicial impact, approaches that have been used to understand school desegregation policy in the United States. School desegregation policy, like OMLE policy in Canada, has involved questions of where and how minorities are educated and implicated broader questions of constitutional accommodation (Apps 1985; Manfredi 1993; Magnet 1995). The Canadian case is simply the mirror image of the American one, where Francophone proponents of policy change are arguing for "separate but equal" educational facilities and administrative structures rather than integrated ones. …